A federal appeals court shot down a push to expand mail-in voting in Texas during coronavirus, erasing a lower court ruling, eviscerating the judge for a shoddy opinion, and saying it’s up to states, not courts, to set voting rules.
The decision is the most forceful rejection yet of expanded mail-in voting, and it’s based at least in part on the belief that voting by mail is more susceptible to fraud — a point President Trump has made in his vociferous opposition to the practice.
In this case the 5th U.S. Circuit Court of Appeals, in a 3-0 decision, said fear of contracting the coronavirus is not likely to be a valid disability for purposes of voting absentee in Texas.
The appeals court also blasted District Judge Samuel F. Biery Jr., a Clinton appointee who had ordered state officials to expand mail voting, saying his decision would be “remembered more for audacity than legal reasoning.”
“It was not for the district judge to disparage Texas’s response to the Virus and constitutionalize his favored version of the Election Code,” wrote Judge Jerry E. Smith, a Reagan appointee, in the main opinion.
Judge James C. Ho was even sterner in his concurring opinion.
“We do not suspend the Constitution during a pandemic. That includes our constitutional structure of government,” wrote Judge Ho, a Trump appointee.
He said Texas has a valid interest in limiting mail-in voting because of a heightened risk of voter fraud, citing a 2008 Supreme Court case for backup on that point.
“There is no suggestion that these widely held concerns about voter fraud will not be present during the pandemic,” he wrote. “So if there is to be expansion of mail- in voting notwithstanding these findings, our Constitution and precedents remind us that it must be done by legislators, not judges.”
While most states now allow for absentee, or mail-in, voting, Texas is one of those that still requires a specific reason. The law allows for those who will be away from home on election day, or those who have a disability, to vote absentee.
The Texas Democratic Party argued that fear of contracting COVID-19 constituted a disability, so everyone should be allowed to vote absentee.
Judge Biery had agreed in a ruling last month, issuing an order that the state permit that — and seeing all sorts of nefarious motives behind state leaders’ refusal to see things his way.
“The court finds the Grim Reaper’s scepter of pandemic disease and death is far more serious than an unsupported fear of voter fraud,” he wrote.
He pointed out Texas law allows those over age 65 to vote absentee without a specific disability, and said not to allow others to do so would be unconstitutional age discrimination against the younger voters.
The appeals court, in its withering dissection of Judge Biery’s opinion, repeatedly pointed out where he bungled his grammar, mocked him for “rank speculation, and said he ignored the key case that punctured his ruling.
Texas Attorney General Ken Paxton hailed the ruling, saying it “puts a stop to this blatant violation of Texas law.”
But Rep. Sylvia Garcia, Texas Democrat, said not allowing more vote-by-mail is handing President Trump a political victory,
“We cannot stand for any actions that would purposefully limit the right to vote of any eligible voter, and unfortunately this is exactly what Republican officials are attempting to do,” she said.
She said she wants the U.S. Supreme Court to take the case.
The Texas Supreme Court has already ruled on another version of the case.
In a unanimous opinion the state high court sided with Mr. Paxton and the state, saying coronavirus fear is not a disability — though the justices also said it’s up to each voter to decide whether he or she has a disability, and there’s no mechanism for election officials to question that.
Federal Circuit Judge Gregg Costa, the third judge in Thursday’s ruling, said Judge Biery should have let that Supreme Court case guide him, rather than jump to intervene — though Judge Costa also criticized his two fellow appeals judges, who he said also jumped into the case too deeply.